Bucalo v. East Hampton Union Free School District

238 F.R.D. 126, 2006 U.S. Dist. LEXIS 73891, 2006 WL 2884272
CourtDistrict Court, E.D. New York
DecidedOctober 12, 2006
DocketNo. CV 04-1695-ADS-MLO
StatusPublished
Cited by3 cases

This text of 238 F.R.D. 126 (Bucalo v. East Hampton Union Free School District) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bucalo v. East Hampton Union Free School District, 238 F.R.D. 126, 2006 U.S. Dist. LEXIS 73891, 2006 WL 2884272 (E.D.N.Y. 2006).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

The plaintiff Stephanie Bucalo (“Bucalo” or the “Plaintiff’) moves for review of a portion of an Order of the Clerk, dated April 27, 2006, that assessed costs in favor of the Defendant East Hampton Union Free School District (“East Hampton” or the “Defendant”), and against the Plaintiff, in the sum of $1,110.40, for the cost of the deposition transcripts of the Defendant’s trial witnesses, Gina Kraus (“Kraus”), Kathleen Praetorius (“Praetorius”) and Susan Vaughan (“Vaughan”). Costs were also assessed against the Plaintiff for the transcripts of Plaintiffs deposition and the deposition of an additional witness, Noel McStay. The Plaintiff, however, does not appeal the assessment of these latter costs.

The Defendant opposes the Plaintiffs motion, and, in addition, requests review of that portion of the Order of the Clerk that denied the Defendant’s request for costs against the Plaintiff in the amount of $19, 214.37 for the cost of the trial transcript.

I. BACKGROUND

The Plaintiffs case involved federal and state law claims that the Defendant discriminated against her on the basis of her age and retaliated against her. The parties proceeded to an eleven (11) day trial and the jury heard testimony over the course of eight (8) days. The jury returned a verdict in favor of the Défendant. Thereafter, the Court en[128]*128tered judgment in favor of the Defendant. The Defendant moved for the taxation of costs against the Plaintiff in the amount of $22,224.47 for the cost of depositions and the trial transcript. Following the Court Clerk’s assessment of costs in the amount of $2,619.50 for depositions, the Plaintiff and the Defendant moved for review.

II. DISCUSSION

“A district court reviews the clerk’s taxation of costs by exercising its own discretion to ‘decide the cost question [itjself.’” Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir.2001) (quoting Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964)). Pursuant to Rule 54 of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”), costs are awarded to the prevailing party as a matter of course. Fed. R.Civ.P. 54(d); Whitfield, 241 F.3d at 271 (“Such an award is the norm, not the exception.”). In order to qualify as prevailing party, the party must have succeeded “ ‘on a significant issue in the litigation.... ’”. Screenlife Establishment v. Tower Video, Inc., 868 F.Supp. 47, 50 (S.D.N.Y.1994) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

A. Assessment of Costs for Deposition Transcripts

In support of her motion, the Plaintiff argues that the Court Clerk improperly assessed costs in the amount of $1,110.40 for the deposition transcripts of Kraus, Praetorius and Vaughan. As the Plaintiff correctly notes, three days prior to trial, the Defendant served a witness list, for the first time advising the Plaintiff of six witnesses it intended to call to testify during trial. The Plaintiff moved to bar the witnesses from testifying. The Court permitted three of the six witnesses to testify, but ordered the Defendant to produce the three witnesses for depositions at the Plaintiffs counsel’s office prior to the trial. The Court further ordered that the depositions be taken “at the cost and expense of the defendant in other words, the defendant will pay for the depositions.”

In apparent disregard of the Court’s explicit instructions, following trial, the Defendant requested that the Court assess these costs against the Plaintiff. In its opposition to the Plaintiffs motion, the Defendant admits that the Court ordered the Defendant to pay for the depositions. However, the Defendant states that “[tjhere is no lawful reason why these costs, in their entirety, should not be included within the costs awarded to the defendant.”

The Court disagrees with the Defendant and reiterates its prior order on the record that the Defendant bear the costs of the Kraus, Praetorius and Vaughan depositions. The Court also notes its concern with the Defendant’s attempt to circumvent the clear and express instruction of this Court. In a similar factual situation, in Cohen v. Stephen Wise Free Synagogue, No. 95 Civ. 1659,1999 WL 672903, at *1 (S.D.N.Y. Aug. 27, 1999), during a pre-trial conference, the Court granted the defendant’s belated request to take a videotaped deposition of a witness who would be unavailable for trial. The Court ordered the defendant to bear the full costs of the deposition. Cohen, 1999 WL 672903, at *1. Following trial, the victorious defendant requested that the court assess costs against the plaintiff for the deposition. Id. The Court, “note[d] its displeasure with the defendant’s counsel’s use of the Clerk’s Office to circumvent an explicit Court order.” Id. Accordingly, Bucalo’s motion is granted and the Defendant’s award of costs is reduced by the sum of $1,110.40, representing the costs of the Kraus, Praetorius and Vaughan depositions.

B. Assessment of Costs for Trial Transcript

The Defendant also moves for review of the Court Clerk’s Order, alleging that costs should be taxed against the Plaintiff in the amount of $19, 214.37 for the cost of the trial transcript. In support of its claim, the Defendant argues that counsel utilized the trial transcript for: (1) cross-examination; (2) summation; and (3) the charging conference. The Defendant further claims that the Court asked if the Defendant was planning to purchase the trial transcript, informing the Defendant, “[i]t is beneficial to have it.”

[129]*129Pursuant to Local Rule 54.1(c)(1), “the cost of any part of the original trial transcript that was necessarily obtained for use in this court or on appeal is taxable.” See also 28 U.S.C. § 1920 (“a judge or clerk of any court of the United States may tax as costs ... [flees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case”). However, “[d]aily transcripts of trial testimony are not customary.” Carmody v. Pronav Ship Mgmt., No. 02 CV 7158, 2004 WL 1837786, at *2 (S.D.N.Y. Aug.17, 2004) (citing John & Kathryn G. v. Bd. of Educ. of Mount Vernon Public Sch., 891 F.Supp. 122, 123 (S.D.N.Y. 1995)); Williams v. Cablevision Systems Corp., No. 98 Civ. 7988, 2000 WL 620215, at *2 (S.D.N.Y. May 12, 2000).

“[T]he relevant inquiry is whether the transcripts of plaintiffs trial testimony were necessary for defendant’s use in the case.” Cohen, 1999 WL 672903 at *2. Although the Defendant argues that counsel used the transcript to prepare for cross examination, summation and the jury charge, “[u]se of the transcripts during trial ...

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Bluebook (online)
238 F.R.D. 126, 2006 U.S. Dist. LEXIS 73891, 2006 WL 2884272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bucalo-v-east-hampton-union-free-school-district-nyed-2006.